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EXHIBIT 10.9
SECOND AMENDMENT TO LEASE
(ORIGINAL BUILDING)
THIS SECOND AMENDMENT TO LEASE (the "Amendment"), made as of the 17th day
of July, 1996, by and between CORPORATE DRIVE ASSOCIATES, LLC, an Indiana
limited liability company ("Landlord"), and BRIGHTPOINT, INC., a Delaware
corporation f/k/a/ WHOLESALE CELLULAR USA, INC. ("Tenant"), WITNESSES that:
Recitals
WHEREAS, Landlord and Tenant entered into that certain Lease, dated June
6, 1995 ("Initial Lease"), as amended by that certain Amendment to Lease, dated
October 3, 1995 ("First Amendment"), pursuant to which Landlord leased to
Tenant and Tenant leased from Landlord a building constructed by Landlord
("Building") at the southwest corner of the intersection of Corporate Drive and
Corporate Way in Corporate Center North Corporate Park, Indianapolis, Indiana,
together with the parcel of real estate upon which the Building has been
constructed, as such parcel is more particularly described on Exhibit A-2 to
the Lease ("Parcel");
WHEREAS, Landlord has completed the construction of the Building on the
Parcel in accordance with the terms and provisions of the Initial Lease and the
plans and specifications attached to the Initial Lease, and Landlord has
completed the construction of a second floor of office space inside the
Building and certain other improvements to the Building and the Parcel
(collectively referred to as the "Additional Improvements") in accordance with
the terms and provisions of the First Amendment and the plans and
specifications attached to the First Amendment;
WHEREAS, Tenant desires Landlord to construct an expansion of the Building
and make certain other improvements to an adjoinder parcel of real estate
(collectively referred to as the "Expansion Improvements"), the construction of
which Expansion Improvements is not expressly provided for by the Initial
Lease, the plans and specifications attached to the Initial Lease, the First
Amendment or the plans and specifications attached to the First Amendment;
WHEREAS, Landlord and Tenant have entered into that certain Lease, dated
the date hereof ("Adjoinder Lease"), pursuant to which Landlord is leasing to
Tenant and Tenant is leasing from Landlord the Expansion Improvements, together
with the adjoinder parcel of real estate upon which the Expansion Improvements
are to be constructed, as such adjoinder parcel is more particularly described
on Exhibit A-2 to the Adjoinder Lease ("Adjoinder Parcel");
WHEREAS, as a condition of entering into the Adjoinder Lease, Landlord and
Tenant have agreed to certain amendments, modifications and supplements to the
Initial Lease, as amended by the First Amendment (collectively referred to as
the "Lease"), and Landlord and Tenant desire to amend, modify and supplement
the Lease to reflect the agreement between the parties;
NOW, THEREFORE, in consideration of the premises, Landlord and Tenant
entering into the Adjoinder Lease, the mutual covenants and agreements set
forth in the Lease and contained herein, and other valuable consideration, the
receipt and sufficiency of which are acknowledged hereby, Landlord and Tenant
hereby amend, modify and supplement the Lease as follows:
1. The definition of the "Parcel", as set forth in Section 1 of the
Lease, shall be amended by substituting Replacement Exhibit A-1 and Replacement
Exhibit A-2 attached hereto for Exhibits A-1 and A-2, respectively, attached to
the Lease.
2. The definition of the "Initial Lease Term", as set forth in Section 2
of the Lease and as amended by the First Amendment, shall be amended to mean
the period commencing on the date that is the
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"Commencement Date" (as defined in the Lease) and ending on the "Expiration
Date" (as defined in the Adjoinder Lease).
3. The fifth sentence in Section 9 of the Lease shall be amended by
substituting "the expiration of the Warranty Period" for "receipt of the
Acceptance Letter".
4. The first sentence in Section 10 of the Lease shall be amended by
deleting "so that such utility services are not commonly metered with any other
building".
5. The first sentence in Subsection 12(a) of the Lease shall be
supplemented by adding the following:
provided that Landlord, in its sole and absolute discretion, may
(i) withhold its consent to any proposed assignment of this Lease
if the proposed assignee is not the same party that then is, or,
after a concurrent assignment occurs, will be, the tenant under
that certain Lease by and between Landlord and Tenant, dated
July 17, 1996 ("Adjoinder Lease"), and (ii) in the case of
such a concurrent assignment to occur, condition its consent to
any proposed assignment of this Lease on the occurrence of the
concurrent assignment.
6. The first sentence in Subsection 12(b) of the Lease shall be amended
by substituting the following for the portion of such sentence after the date
"December 31, 1994":
such entity concurrently will become by virtue of the Merger or
Asset Sale the tenant under the Adjoinder Lease, specifically
assumes the obligations of Tenant under this Lease and the
Adjoinder Lease and agrees to cure any outstanding default
pursuant to such obligations, and Tenant otherwise complies with
the terms and conditions of this Section.
7. The first sentence in Subsection 14(e) of the Lease shall be amended
by substituting "thirty (30) days" for "fifteen (15) days".
8. Subsection 17(a) of the Lease shall be supplemented by adding the
following:
(xi) Any default by the tenant under the Adjoinder Lease, if
such default is not cured within the applicable cure period, if
any, provided in the Adjoinder Lease.
9. The first sentence of Section 19 of the Lease shall be supplemented by
adding the following:
and to any declaration of covenants, restrictions and easements
with respect to the Leased Premises and the premises leased to
Tenant under the Adjoinder Lease ("Adjoinder Premises").
10. Section 19 of the Lease shall be supplemented by adding the following:
Tenant acknowledges that the Leased Premises may be (i) subjected
to the same mortgage or other method of financing or refinancing
as that to which the Adjoinder Premises is subjected or (ii)
subjected to separate mortgages or other methods of financing or
refinancing. Accordingly, Tenant acknowledges that (i) this Lease
and the Adjoinder Lease may be subordinate to the same or
different mortgages or other methods of financing or refinancing,
and (ii) this Lease, the Adjoinder Lease and the rents payable
hereunder and thereunder may be assigned to the same or different
mortgage lenders or lien holders.
11. Section 25 of the Lease shall be supplemented by adding the following:
Notwithstanding anything set forth herein, (i) Tenant may not exercise its
option to purchase the Leased
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Premises, unless Tenant simultaneously exercises its option under
the Adjoinder Lease to purchase the Adjoinder Premises, and, (ii)
after Tenant exercises its options to purchase both the Lease
Premises and the Adjoinder Premises, the obligation of Landlord to
convey the Leased Premises to Tenant is conditioned upon a
simultaneous closing of the purchase by Tenant of both the Leased
Premises and the Adjoinder Premises, with a simultaneous payment
by Tenant of both the Purchase Price and the price specified in
the Adjoinder Lease to purchase the Adjoinder Premises.
12. Clause (i) of the second sentence in Exhibit B-1 to the Lease
(Prevailing Base Rent) shall be amended by substituting "minimum rent" for
"gross minimum rent".
13. Exhibit B-2 to the Lease (Base Rent Schedule) shall be deleted in its
entirety and replaced with Replacement Exhibit B-2, attached hereto.
14. Unless expressly amended, modified or supplemented herein, all terms
and provisions set forth in the Lease, as amended by the First Amendment,
shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Second
Amendment to Lease on the date first above referenced.
CORPORATE DRIVE ASSOCIATES, LLC an
Indiana limited liability company
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Member
BRIGHTPOINT, INC., a Delaware
corporation, f/k/a WHOLESALE
CELLULAR USA, INC.
By: /s/ J. Xxxx Xxxxxx
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Printed: J. Xxxx Xxxxxx
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Title: CFO
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EXHIBIT B-2
(ORIGINAL BUILDING)
BASE RENT SCHEDULE
Commencement Date through Year 10 - $5.73 per gross square foot
based on 84,928 square feet
Portion of Year 11 prior to Expiration Date - Greater of $7.00 per gross square foot
or the Prevailing Base Rent
(as defined on Exhibit B-1)
based on 84,928 square feet
First Extension Term - determined pursuant to Exhibit B-1
based on 84,928 square feet
(provided that Base Rent during the
last year of the First Extension
Term shall not be less than $7.70
per gross square foot)
Second Extension Term - determined pursuant to Exhibit B-1
based on 84,928 square feet
(provided that Base Rent during the
last year of the Second Extension
Term shall not be less than $8.50
per gross square foot)
The Base Rent for the Warehouse Space prior to the substantial completion or
earlier occupancy of the Office Space shall be prorated based on the square
footage of the Warehouse Space. (57,420 sq. ft. x 5.73 per gross square
foot/12 = 27,418.05 per month). Upon the substantial completion or earlier
occupancy of the Office Space, Tenant shall pay Base Rent on the entire 84,928
square feet comprising the Leased Premises as set forth in the above schedule.
